As with the legislative branch, the precise design of the executive branch is not detailed in the Constitution. Some argue--with reason--that today's executive branch bears little relationship to the one that existed when George Washington was president. From a small group of people with narrowly defined functions, the executive branch now has grown substantially and is composed of people who often have an aggressive vision of the role they should play in everyday life. This doesn't mean that there weren't individuals early on who wanted to expand the size of government. There were, notably Alexander Hamilton, if not the Federalists in general. They considered aggressive governmental involvement in the economy and land acquisition to be essential to fostering the prosperity of the country.
As this process has evolved, and occasional crises have occurred, the scope of governmental functions has expanded. To see an example of this, look at the nature of the institutions in the Washington Administration and compare it to the range of institutions that exist in the current administration. You might find this A-Z listing of agencies interesting or maybe frightening depending on your political persuasion.
In this section we will trace the development of the executive branch as well as the development of the White House. The timeline below lists the major steps in the branch's evolution. As you can see, bit by bit the functions of the executive branch has expanded, largely due to the passage of laws which grant it new authority, generally in response to some event which led to a political push to grant it that authority. As the responsibilities of the office expanded, so did the pressures placed on the president, which led to the development of a larger White House staff that allows the president to manage these increased responsibilities. Despite attempts to constrict executive powers, its powers are still considerably greater than those granted to it in the early days of the republic.
Goals: You should be able to address the following after reading through this material.
To understand the ongoing dispute regarding the constitutional role of the president: Is the presidency meant to be a passive office that simply implements the dictates of the legislative branch or is the office designed to allow for a president to lead when leadership is necessary?
To understand how and why the executive branch has expanded over the course of American History.
What was the nature of the executive branch under Washington?
Know the difference between a passive and active president. What is the basic disagreement between Theodore Roosevelt and William Howard Taft regarding the constitutional powers of the office?
Be familiar with the following terms which describe eras during which presidents enjoyed a particular level of power: chief clerk, modern presidency, imperial presidency, post modern presidency.
What role has the expanded bureaucracy, the growth of executive advisory agencies, and media technology had for the growth of executive power? Is there evidence that executive power might be decreasing?
How have past Supreme Court decisions facilitated the increase of executive power? Be able to discuss the ones I highlight.
Be familiar with the Cabinet, the Executive Office of the President and the White House Staff.
In the sections below I trace the evolution of executive power. This is a controversial topic since many argue, with good reason, that executive power in the United States has far surpassed what was originally intended by the authors of the Constitution. The idea that the powers of Congress are limited to only those delegated to it in the Constitution, plus the requirement that executives faithfully execute the laws, suggests that presidents can only do those things that it has been granted to do either in the text of the Constitution, or by congressional mandate. But as we have seen, there is some slipperiness in the language. An early proponent of strong executive power, Alexander Hamilton argued for loose interpretations of the Constitution and the notion that the document implies that certain things can be done, even if specific language does not grant that power. Hamilton, as we know from the previous section, proposed not only the single executive, but had been in favor of an executive that would serve for life.
As the first Secretary of the Treasury (Washington's first selection was Robert Morris -- Morris attended the Constitutional Convention and nominated Washington to serve as its president), Hamilton would argue that implicit with the language of the constitution were powers necessary and proper to carry out the commercial powers clearly delegated in the document. The Treasury Department was one of the first executive departments established -- along with War and State.
Aside from contemporary critics of Hamilton, Andrew Jackson represents the strongest opposition to Hamilton's theories regarding presidential power. Jackson favored narrow readings of constitutional language that would deny many powers to the executive. Ironically, the circumstances of Jackson's election, especially his popularity with the general population (along with his decision to veto the bank bill) led to concerns about his power and to increasing references to him as King Andrew. The opposition partywhich developed at that time adopted the name Whigs in reference to the movement in Britain which opposed the power of the monarch and led to the development of a constitutional monarchy.
Passive and Active Presidents
Disputes over the proper role of the president would continue, and still do. Two general statements concerning the dispute over the president's role are contained in these two statements from, respectively, an active and passive president:
My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin . . . . My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the president and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition.
Roosevelt was a proponent of progressivism. Among the things Roosevelt did during his presidency that presidents previously had not done included actively breaking apart monopolies (trust busting), regulating the railroads and the economy in general, the creation of the Food and Drug Administration, promoted conservation, made minor steps towards establishing civil rights for African-Americans, increased activity in world affairs, negotiated the end of the Russo-Japanese War, helped facilitate the construction of the Panama Canal by encouraging Panama to break from Columbia, among many other items.
The true view of the executive function is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must either be in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to be to him to be in the public interest, and there is nothing in the . . . law of the United States, or in other precedents, warranting such an inference. . . .[His] jurisdiction must be justified and vindicated by affirmative constitutional or statutory provision, or it does not exist.
Taft, who after his presidency would become Chief Justice of the Supreme Court, saw a more restrained role for the Chief executive. But the difference in the two philosophies outlines the key distinction between the presidencies of (roughly) the 19th Century and the 20th and 21st Centuries. The former were generally passive, if not due to a philosophical disposition towards the constitution and the appropriate nature of executive power, at least in terms of what actual power existed in the office. Even if they wished to accomplish much, they lacked the executive infrastructure to make it happen. In the later years of the 19th Century and the early years of the 20th, this would change.
The president would shift from being a "chief clerk" which only carried out the dictates of Congress, to the "modern presidency," beginnign with Franklin Delano Roosevelt, with a communications, advising, and administrative capacity to set, sell and implement an agenda, sometimes over the heads of Congress. The power of the office grew to a point where some began worrying about the potential for abuse. This came to a head during the presidencies of Lyndon Johnson and Richard Nixon who were each accused of using investigative and surveillance powers for political purposes. The term "imperial president was coined to refer to that era. As factors have changed, there has been speculation that the powers of the president have in fact diminished. Have we now entered into a post modern age where the president must share powers he once had full control over?
The Chief Clerk: 1789 - 1937
The Modern President: 1937 - ?
The Imperial President: 1963 - 1974 (LBJ - RMN)
The Post Modern President: 1989 - ?
The Mechanism for Presidential Power.
The increase in presidential and/or executive powers occurred slowly over a number of years due to a variety of factors.
1 - The increased size of the bureaucracy and the development of relatively autonomous bureaucratic agencies.
2 - The development of a sophisticated advising sytem that assists the president in carrying out duties.
3 - An increasingly sophisticated and comprehensive media technology that allowed the president the ability to push an agenda to the general population.
4 - A Supreme Court that has accepted a loose interpretation of constitutional language relating to executive power.
More on each:
1 - The Bureaucracy.
The executive department, and the president along with it, has become more powerful simply because its jurisdiction has As detailed in the timeline above and the text below, the size of the federal -- as well as state and local governments -- have increased as additional functions have been added to it bit by bit. This is the bureaucracy. The bureaucracy, in fact, implements policy. While the chief executive, whether on the national or state level, may set general guidelines for how a policy should be implemented, the actual work is done by the civil servants who work in bureaucratic agencies. Any government official you are likely to encounter on a daily basis is a bureaucrat. The bureaucracy can be defined as "the combined organizational structure, procedures, protocols, and set of regulations in place to manage activity, usually in large organizations." This means that bureaucracies can exist in private as well as public organizations. The fact that chief executives come and go, while members of the civil service generally makes careers out of holding onto their jobs, there can be conflict between the two. It is not unusual to hear presidents after they leave office to complain about how little impact they really had over how the bureaucracy operates. Top bureaucratic officials often attempt to persuade presidential advisers, Cabinet members for example, to make decisions more inline with the desires and opinions of the agency rather than the White House. Perhaps the most fascinating recent story in this line was when Mark Felt, an FBI agent who rose to become Assistant Director, chose to become an informant to Woodward and Bernstein as they investigated Richard Nixon's role in the Watergate scandal. Felt was worried about Nixon's efforts to undermine the agency and successfully worked against him.
Overtime, hundreds of agencies have been established to deal with the many problems has chosen to address. As important, if not more important, than the fact that the size of government has grown, is how it has grown. As public problems emerge and solutions are developed in the legislature, agencies are often created to manage whatever solution is developed. For example, the problem posed by old age poverty was solved by the establishment of a pension system managed by the Social Security Administration. More recently, the health care bill established the National Prevention, Health Promotion and Public Health Council and the financial services bill established the Financial Stability Oversight Council. When Congress establishes these agencies it grants them rulemaking power, which is the ability to make decisions about how a particular law can be implemented. These rules are made by the career civil servants who run these agencies that determine how in fact the general guidelines established in the law are carried out. This of course can crate a problem for two reasons, first, since they are not elected, they are making decisions that the general population cannot effectively respond to through the ballot box. For some this can be an advantage however because it can ensure that certain decisions are immune from the political process and are handled in a neutral, detached professional manner. Second, rulemaking is very similar to lawmaking. The distinction between the two is sometimes blurred. If that is the case though, the executive branch has encroached upon the legislative branch and violated the doctrine of separated powers. Occasionally rules are in fact struck down by the Supreme Court for that very reason. In FDA v. Brown and Williamson Tobacco, the Supreme Court ruled that FDA attempts to regulate the advertising of tobacco to minors exceeded its authority as an administrative agency.
Executive agencies come in a variety of forms. The Constitution mentions the existence of executive departments each with a "principal Officer" at their head. The principle officer of each executive department is called the "secretary." Together these individuals, plus a handful of others, is called the United States Cabinet. Among the first acts of Congress was the creation of the State Department (the Department of Foreign Affairs) -- over a dozen other would follow in due course. Within each department are a variety of bureaus, offices and agencies which do actual, specific dirty work. These agencies can have clearly defined, narrow tasks. Click here for the organizational flowchart of the State Department. The majority of agencies exist within the structure of one of the cabinate level departments, but many are independent. Example of independent agencies include the Central Intelligence Agency, the Environmental Protection Agency, and the Federal Communications Commission. Independence is sometimes granted to an agency in order to remove them from the, sometimes politically motivated, influence of the White House. Examples of agencies that are not independent, and therefore may be more subject to control by the departmental secretary, include: The Forest Service (in the Department of Agriculture), the Center for Disease Control and Prevention (in the Department of Health and Human Services), and Federal Bureau of Investigations (in the Justice Department).
Here are clearer descriptions of each.
United States Federal Executive Departments: One of fifteen collections of bureaus, agencies and other groups charged with implementing statutory law. Independent Agencies: These are independent because they have jurisdictions that lie outside the scope of one of the fifteen cabinet level departments. They tend to be one of three types: Executive agencies, Regulatory Agencies, and Government corporations. Government Sponsored Enterprises: These are a handful of government backed corporations that deal primarily with financial services. They are intended to ensure that credit is made available to targeted sectors of the economy. These include Fannie Mae and Freddie Mac.
Here is a list of executive branch agencies.
Regulatory Capture and Iron Triangles: One of the primary problems that occurs with any of these agencies is when a vested interest attains enough political strength to control one of these agencies, especially a regulatory agency, and then is able to control the regulatory process, often then the regulatory agency winds up issuing regulations that benefit the regulated industry rater than the general public. This is called regulatory capture. When an interest group is able to control an executie agancy this creates one leg of the iron triangle.
Presidents rely on a variety of advisers clustered into one of three advising groups: The Cabinet, The Executive Office of the Presidency and The White House Staff. Of these the White House Staff tends to contain the president's strongest advisers. Given the increased responsibility of the president, a strong advising system has become necessary for president to get things done successfully. But there can be tension between these groups, meaning that a president can get conflicting advise and ultimately must
We discussed the Cabinet briefly above. The cabinet is composed of the secretaries of each of the fifteen executive departments, but can also include whichever heads of independent regulatory agencies the president considers especially important for his agenda.
While Cabinet members are responsible for the implementation of legislation within their jurisdiction, the Executive Office of the President is primarily about collecting and analyzing data and presenting policy options to the president, and other key members of the executive branch. The White House Staff works directly for the president and, to put it simply, is responsible for organizing the president's day and making the president look good. A key difference between these three is that while members of the first two (The Cabinet and Executive
Office of the President) must be confirmed by the Senate, members of the White House Staff are hired and fired directly by the President, this makes it more likely that close loyal individuals will be found in the White House Staff. Those people may not survive the Senate confirmation process. There is an ongoing question about whether the Senate should second quess the decisions Presidents make about who they would like to give them advise, but the fact is that every President takes the confirmation process, and the dirt that might come up around a nominee, into consideration when they decide whom to appoint.
The Cabinet has increased in size as the number of executive departments has increased, but the Cabinet is not where one finds the closest advisers to the President because they don't simply serve the President, they heads a bureaucratic structure that predates the presidency they serve, and was set in place by Congress. The concept of a Cabinet evolved early in Washington's adminitration when the Washington attempted to seek the Senate advise and consent on an issue, but did not receive it. There was a question involving how the advise and consent clause should be interpreted. Was it advise ahead of time on matters related to appointments and treaties, or was it advise given after a decision had been made. Washington opted for the former, but failed to receive the advise he was hoping to receive. He then began the habit of consulting the heads of his executive agencies, and the term "cabinet" emerged. As the bureaucracy has increased however, Cabinet secretaries have found themselves torn between them and the White House. While they oversee the implementation of the President's agenda, they are also subject to review of the actual facts that civil servants face when implementing the laws. This creates a pull between orders from the top and the facts on the ground. This often creates tension within the secretary. Since agencies are charged with implementing laws passed by the legislature, the secretaries are also subject to give testinomy to Congress -- this is Congress' oversight authority. In short, Cabinet secretaries cannot always be relied on to carry out the dictates of the President since they are subject to other constituencies.
A secondary issue also makes Cabinet secretaries less likely to be close advisors to the President. Since the Cabinet is assumed to be a powerful institution, President's often use Cabinet positions to placate constituencies they consider part of their coalition, or groups they would like to get electoral support from. This means that the principle reason why someone might be placed in a cabinet position has lees to do with their actual qualifications than their connection with a group the President needs to be supported by. This isn't necessarily true of the the top Cabinet positions, the people that are termed the "inner cabinet." These are the heads of the department of Defense, State, Treasury, and Justice. It isn;t unusual to hear stories of some presidents having no personal relationship at all with some Cabinet members. This does not bode well for advising.
The Executive Office of the President was created following the suggestion made by the Brownlow Committee in the late 1930s that the President needs help mamaging the executive branch. This was little surprise given that the1930s witnessed an unprecedented increase in the size and functions of the executive. A small informal network was no longer sufficient to figure out what to do with these new programs and duties. In the subsequent legislation, the Reorganization Act of 1939, which allowed the president to create new offices composed of individuals who would provide policy related advise over specific matters. Budgetary matters are handled by the Office of Management and Budget; Economic advise is provided by the Council of Economic Advisers; Security advise by the National Security Adviser, and on and on. See the link above for a full list of the positions. Again, though the heads of each of these offices serves the function of adviser, proximity does not necessarily equal trust. Top appointees have to be confirmed by the Senate and that limits who might get the nod.
This does not apply to the White House Staff. The President has full discretion in choosing who he would like to serve ith him. The Senate plays no role in the selection. Often the White House Staff is full, at least initially, of people who played major roles in the President's campaign for the office. A President's campaign manager often become a domestic policy adviser within the White House. This was true for David Axelrod and Karl Rove. Obviously someone who has had a trial by fire with the President, will be a very close confidant. The fact that they are primarily political people means that they have likely made plenty of enemies, some of whom are likely to be in the Senate. The top position in the White House Staff is the Chief of Staff, who is responsible for the President's day. Often thsi person serves as a gatekeeper to the president, meaning that if you want to see the President, you have to be scheduled in by the Chief of Staff. Beneath this office are policy advisers, comminications directors, legislative liasons, speechwriters, travel planners, pollsters, and many others. Its similar to the staffs that many members of Congress have, but exponentially bigger -- recent White Houses have employed 400 - 500 people. Think of these people as the ones responsible for making sure that President makes the right speech to the right people, in the right place, with the right background and lighting, at the right time. It ain't easy.
A final point. The fact that these people do not have to be confirmed by Congress makes it more likely that these people will be loyal to the President (willing to fall on their sword if necessary) and to be controlled by the President as well. It also has meant that the White House Staff is where scandals are most likely to occur. Watergate, Iran-Contra, Monica Lewinsky, and the Firing of Justice Department Lawyers were scadals in our recent presidential administrations, each perpetuated by the White House Staff.
3 - Media Technology
Media technology conditions how people can communicate to each other. As media technology has improved from the printing press and the horse and buggy to the internet, the entire nature of the relationship between individuals has changed as well. This extends also to the presidency and how the office can connect with, and potentially mobilize, the general population. Over the past 100 years especially (with the dawn of radio and television communication), media technology has grown increased sophisticated. Up until recently, these advances have helped the president more than the other institutions since the president is in a better position to command the airwaves. This is because the executive branch, since it is headed by a single individual, is better able to take a single solid message to the public. Neither Congress not the judiciary can do the same. Recall that Congress is not only bicameral, but is dominated by two large political parties. The Senate is also structured in such a way that each individual Senator can inject him or herself in the middle of the legislative process. As an institution it cannot speak with one voice. But at least it has the inclination to speak to the public, the courts do not, they don't have to, especially the national courts. The Supreme Court never makes a big media event out of its decisions, it simply releases them. It never holds press conferences to discuss its decisions, it allows external actors to do that for them.
20th Century advances in media technology allowed the president to forge a relationship with the general population that previous presidents could not. Though there were attempts to make presidents the focus of attention during campaigns, the effort was made by others, not the president -- or candidate -- themselves. As a practical matter, during the 19th Century the average citizen was more likely to have a connection with their congressional representative. That would have been the person they would most likely have had the opportunity to meet, spoken with or heard speak in person. This fit the very purpose of the House of Representatives. It was to be the glue that connected the general population with the natinola government. Once the president could use radio or television to directly address the general population, this dynamic changed. A president, especially one with charisma, could forge his own unique relationship to the population and a bond could be established between the public and the individual. The stronger the bond, the better able the president could be to go over the heads of Congress and sell his agenda to the people. Theodore Roosevelt noted the unique opportunity the office allowed the occupants what he called a bully pulpit for advancing an agenda.
The classic example of this was FDR and his fireside chats. It has to be noted that prior to his presidency, the nation underwent an economic boom which was driven in part by a growing market in the sale of radios, as well as the development of radio networks. By the time he became president, listenign to radio programming was part of the typical day of most Americans. It also has to be noted that FDR has a personality conducive to successful radio addresses. He had a calm radio voice that was able to connect with people in a way that made them more likely to support his legislative agenda, and not that of Congress. The limited number of radio networks also made it easier for the president to request and receive radio time that would then dominate the air waves. For the duration of the speech, there was practicaly nothing else to listen to. The rise of radio also impacted the types of individuals that could sucessfully run for the office. One had to be able to communicate well over the medium. This was especially true for television, which became an emerging factor in the early 1950s and more dominant as more people purchased televisions. Famously, the 1960 presidential debate benefitted a calm, tanned, attractive Kennedy more than a nervous, jittery Nixon. Visual cues began to affect what types of people (tall, poised, good hair) were electible, but again the fct that there were a small number of networks, and no comparable communications device for Congress enhanced the rise of the modern president to almost an imperial level.
Beginning with FDR and going through at least the Reagan administration, presidents continued to own a practical monopoly on the airwaves, but late in the Carter Administration a change began to occur that would slowly change that. Cable television was developed and would vastly expand the number of news outlets, and channels in general, available. Ted Turner launched CNN, a 24 hours news network. This created a larger platform for political news that allowed more coverage of Congress, and more opportunity for individual members of Congress to take their message to the public. Television cameras were placed in the House of Representatives and then the Senate. Rising stars like Newt Gingrich were able to make speeches on the floor of the House -- when no one else was present -- not to speak to the House, but to the nation. As more politically oriented news channels emerged, many with ideological agendas, a president could no longer dominate the media. The media environment was too vast and diverse. The attempt is still made, through the office of communications, but it increasingly difficult.
Along with cable, computer and internet technology became more user friendly, powerful, and common. This placed additional restrictions on the bully pulpit. Sophisticated and simple software programs make it easy for anyone to start a website and send out a message, some of these can gain currency and influence the political debate. The recent rise of the blogosphere allows anyone with a blog to be, or attempt to be, an opinion leader. And more recently, Facebook and Twitter have expanded these opportunities. Twitter alone seems to have destroyed the ability of the president to use the state of the union address to impact Congress' agenda. In recent addresses given by Obama, key Republican leaders used Twitter to instantaneously respond (negatively) to Obama's statements. If anything the current trajectory of communications technology will lead to even further decentralization of the media, and less and lessopportunity for any president to drive an agenda.
4 - Supreme Court Decisions
Finally, none of the expansions of executive power would have been possible without a Supreme Court that reinterpreted key parts of the Constitution -- primarily the commerce clause -- to allow for the agencies established in the 20th century to stand constitutional challenge. This was a key part of 2301 during our discussion of federalism and the expansion of national power that began in the late 19th century and was furthered in the New Deal and the Great Society. That discusion is applicable here as well because to say that national power has expanded is the same as saying that national executive power has expanded. But this expansion has to survive court challenges that the laws passed by Congress are constitutional, This should sound familiar if you have been following the news since opponents of the health care bill -- the Affordable Care Act -- are making the same argument. Again the argument comes down to whether the act fits within the Supreme Court's definition of the commerce clause.
It's appropriate here to revisit FDR's court packing scheme and the way that Constitution allows for executive and legislative manipulation of the judicial branch -- despite the checks and balances. Prior to 1937 the Supreme Court was dominated by forces hostile to the Progressive agenda. These forces had dominated the Supreme Court for decades. In 1905, for example, in the case of Lochner v. New York, they declared that a New York law limiting the hours a person is required to work was an unconstitutional violation of the implicit "freedom of contract." Similar national laws were struck down, but also because there was little support for the idea that the commerce clause authorized the national government to pass laws about labor since labor was part of the commercial process. When FDR is elected president in 1932, the court is intact and hostile to his agenda. Many of the early laws passed in the New Deal were found unconstitutional. The key case was Schechter Poultry Co. v. the U.S. (the sick chicken case) which declared the National Industrial Recovery Actunconstitutional. The act was a long involved bill which authorized executive actions to stimulate the economy, including the imposition of regulatory standard on the sale of goods, even within state borders. The Supreme Court struck the entire bill down on the grounds that Congress had delegated too much discretionary power to the executive branch, and that the national government had exceeded its delegated powers to regulate interstate commerce by regulating intrastate commerce.
All that changed in 1937 and the decision supporting the constitutionality of the Wagner Act and the establishment of the National Labor Relations Board (which still exists). This was the case that began the process -- which continued uninterrupted until the 1990s -- where the commerce clause justified a series of new laws and new executive agencies. Other parts of the Constitution have been used to justify other executive agencies. For example, two separate cases challenged the constitutionality of the Social Security Act, but each failed. In Steward Machine Company vs. Davis (see opinion). The question was whether the act, which mandated that states establish unemployment compensation funds violated federalism. Supporters successfully argued that the act was inkeeping with the ability to the national government to use its taxing powers to regulate economic activity and also fell within the general welfare clause. This decision was upheld in Helvering v. Davis.
It seems then that the size of the executive branch, more specifically the extent of its powers and duties, is in part determined by the disposition of the people who happen to be on the Supreme Court. Once FDR was able to appoint more people to the court, as was his successor Harry Truman, the court was primed to accept further arguments that executive powers needed to be expanded. Beginning with the 1968 election of Richard Nixon, but especially the 1980 election of Ronald Reagan, the nominees to the court began to have a more limited view of both the language of the Constitution and the role of the executive branch in national affairs. Some current justices are believed to be part of the Constitution in Exile movement, which would prefer to return to a pre New Deal vision of the size and roll of both the national government and the executive branch, at least in economic affairs.
In the following sections I attempt to trace the development of executive power bit by bit. What specific events lead to the development of each executive institution? George Washington and the Early Executive
Aside from providing a model for the design of the singular executive as the presiding officer of the Constitutional Convention, Washington was fully expected to be the first person to hold the office. After his unanimous selection by the electoral college, he had to determine what in fact a president was to do and what the protocol would be for the office. He oversaw the creation of the first three executive departments (War, State and Treasury), in addition to the establishment of the office of the Postmaster General and the Attorney General, and the addition of the Bill of Rights to the Constitution.
Since he was the first president he would set the precedence for how all other presidents would conduct themselves in the office. Perhaps the most important precedent was the one established when he decided to step down after two terms in order to make it clear that the office was not a lifetime appointment.
The Constitution, in several places, states that the President can perform certain functions with the advise and consent of the Senate, but there was little clarity about what the word "advice" actually meant. Was the president to actually seek the advice of the Senate before he made appointments and decisions on treaties, or could he approach the Senate after a decision was made? If it was the latter, and Washington believed that it was, then the President would look elsewhere for advise, assuming such advice was necessary. Presidents can always make up their own minds if they choose. After an unsuccessful attempt to use the Senate as an advisory body, Washington began using the heads of his executive agencies for advise. His most important adviser was Alexander Hamilton, his Treasury Secretary. But his cabinet also included Thomas Jefferson his Secretary of State, so it was safe to say that the Washington would be able to get expert, efficient and effective advise from the people in his inner circle.
Since then the Cabinet has held a special distinction among the general public. When the president needs good advice, he meets with the cabinet. Since the cabinet has grown over history -- see the timeline above -- one assumes that the quality of the advise has actually increased. But this is not necessarily true. Since cabinet officials have to be confirmed by the Senate, Presidents have had to take into consideration whether appointees are likely to pass confirmation. A President may wish to have a close personal adviser head an executive department, making him or her part of the Cabinet. But that person may not have the background to do the job, or may have skeletons in their closet that can trip up the nomination. Presidents put potential nominees through a vetting process where they try to determine if something in a person's background may cause a scandal that could not only derail the nomination, but the President in a bad light. Cabinets are often put together in such a way that they allow a president to connect to the constituencies that elected him to office. If this is the case, then there is little certainly that cabinet officials will actually be loyal to the president's agenda. John Ehrlichman, Richard Nixon's domestic policy adviser, often complained that some Cabinet members had "married the natives" and were more supportive of the needs of the lower level employees of the executive agencies they headed, than the president. His complaint illustrates the fact that Cabinet officials are not just there to advise, but to oversee the operations of government agencies.
As an institution, the Cabinet as a whole does not have that much influence over the president. As a group they rarely meet, and many have little face time with the President since they often have offices far away from the White House. This is not necessarily true of what is called the "inner Cabinet," which is composed of the heads of the original three departments plus the Attorney General (who was made head of the Justice Department in 1870). They do tend to have close proximity with the President, but even they can be in conflict with other presidential advisers. As we will see below, two separate institutions have developed as additional, and more effective, sources of advise for the president. One is the Executive Office of the President, which is a collection of institutions that only make policy suggestions to the president and other relevant officials, the other -- and perhaps the most important source of advising to the president -- is the White House Staff, which is composed of individuals hired directly by the president and not subject to Senatorial confirmation. More on both of these two institutions below.
Though independent, the United States was a small player in global stage and would be until the early to mid 20th Century. In his farewell address, Washington famously pleaded that the United States remain neutral on the world stage.
Alexander Hamilton and the Expansion of Presidential Commercial Power.
Alexander Hamilton may have been the principle driving force on the national level in the early years of the Republic. As Treasury Secretary, a position he sought despite being counseled against it, he was in an unique position to set the course of America's financial future. When we covered the drafting of the Constitution we discussed Hamilton's role in calling the convention in order to address the confederacy's inability to handle commercial disputes between the states. In his opinion, the future of America was jeopardized by its lack of a national financial system that could provide a base for commercial growth and a security apparatus that could protect trade. As Treasury Secretary he was in a position to address the former.
His most noteworthy accomplishment was to present to Congress three reports on economic policy. The First Report on Public Credit was intended to solidify the country's financial system and establish its credit worthiness. Retiring the national debt, as well as the debt of the several states that still had war debt was central to this effort. This included the controversial proposal that securities that were bought at less than face value, still be redeemed at face value. This was necessary to establish the country's credit worthiness. Funds for future endeavors were available largely because of the trust the country built up due to Hamilton's proposal.
The Second Report on Public Credit suggested that a national bank be charter in order for the constitutionally delegated financial powers to be efficiently implemented. The resulting bank, the First National Bank, was partially owned by the government, but privately operated. It became the depositor of governmental funds. The bank proved controversial for two related reasons. Some, Jefferson primarily, argued that its establishment violated the strict limits of the Constitution, but Hamilton created the concept of implied powers to justify its creation under the Constitution. This doctrine, and an elastic reading of other parts of the Constitution, was necessary to justify many of the other expansions of national power that have occurred over American history. The second conflict involved the propriety of the national government's establishment of an institution that could compete, probably unfairly, with state and private banks. As the powers of the states began to increase as the country grew westward, this fact would become increasingly politicized. We will cover it below when we discuss Andrew Jackson.
The report, the Report on Manufactures, urged the passage pf policies which would actively encourage the development of American industry. This included the use of limited tariffs to protect newly formed companies, subsidies to further encourage growth, and the development of internal infrastructure to facilitate the transportation and communication necessary to foster commercial transactions. This group of policies became key features of the growing political landscape as the Federalist Party became identified as the party of commerce, which allowed the opposition to define themselves as the party of the agrarian classes. These policies would later become part of the platform of the Whig, and then Republican Parties and would provide the basis for American economic policy-making until the Great Depression and the rise of Keynesianism.
Thomas Jefferson's presidency presents a curious contradiction. Prior to becoming president he expounded upon the virtues of state and local governments and argued against the expansive interpretations of the Constitution promoted by Hamilton. As President however he continued some of the economic policies of the Federalists, including the continuation of the national bank and the use of tariffs to support American industry. He was also responsible for using national power to facilitate westward expansion. This was primarily through the Louisiana Purchase and the funding of the Lewis and Clark Expedition.
The Louisiana Purchase was necessary, if for no other reason, because it allowed the United States to control the port of New Orleans. As long as it was controlled by France, commerce which flowed down the Mississippi could only head into the Gulf of Mexico with France's permission. as its turned out, Napoleon was in need of quick cash, due to rebellions in the Caribbean and his intent to invade Russia. Constitutionally, this created a problem because he needed the money so quickly, and was willing to sell to Great Britain if necessary, that the normal appropriation process had to be bypassed in order to make the deal. Once this was accomplished Lewis and Clark were sent on their expedition to map the territory.
Both events helped set the nation's continued course westward, a process that was later termed "manifest destiny," which was a term that held that the U.S. had practically a divine right to control all lands to the west. The terms was actually used to try to persuade American's to support the annexation of Texas and Oregon. Over the subsequent decades a variety of policies helped further westward expansion. The topic would dominate politics until the the late 19th Century when the Frontier was declared closed.
Andrew Jackson and the Rise of the States.
Prior to Andrew Jackson's presidency, presidents had only come from the original states, and actually only two: Virginia and Massachusetts. Being the First President from a western state, Tennessee (at least it was considered the west back then), Jackson brought with him the idea that states and local government should have more control over government than they had enjoyed previously. He was elected to office in 1828 after being denied the office in 1824 despite having been the plurality winner in both the popular and electoral college votes. He used this defeat to burnish his reputation as a common man and his opponents as members of a corrupt aristocracy. He used the spoils system, his personal ability to hire lower level members of the bureaucracy, to solidify his support with this constituency.
As president has sought to dismantle institutions which perpetuated elite privileges, most notably the national bank. The bank, he argued, benefited the financial sector at the expense of the agriculture. He vetoed a bill to recharter the bank and revoked its monopoly as a depositor of government funds, placing funds in state and private banks instead. His Indian removal policy opened land in the South for more agricultural development. Perhaps most importantly he appointed Roger Taney Chief Justice of the Supreme Court upon the death of the last Federalist in public office, John Marshall. During Taney's long tenure in office he made many decisions which reinterpreted the Constitution in a way that strengthened the states. His most important decision, Scott v. Sanford which was decided well after Jackson's death, declared the Missouri Compromise unconstitutional, limiting the ability of the national government to regulate slavery.
Jackson was still a supporter of the Union, and the power of the national government however. A controversy brewed over tariffs which benefited northern industry at the expense of southern states. His Vice President John Calhoun claimed that any state could ignore, nullify, a national law which it felt conflicted its interests. Jackson disagreed and threatened to send federal troops to enforce the law if necessary.
Abraham Lincoln, Presidential War Powers and the Birth of Industrial America.
Lincoln's presidency was a turning point in American history. In addition to overseeing the Union victory in the Civil War, he reestablished the United States on its march towards being a commercial republic, and effectively re-framed the constitutional order.
The Rise of Capitalism and the Push for Regulations.
The years following the Civil War were marked by significant industrial growth. This led to a change in American society which would have an impact on political competition. As industry grew, the agrarian sector shrank. Since industry was located in primarily in urban northern areas, its growth benefited urban America at the expense of rural America. The growth of industry also led to the development of large limited liability corporations, many of which grew to become monopolies -- then called trusts -- which had complete control over a specific sector of the economy. Concern over the abuses that seemed to accompany trusts led to the passage of the Sherman and Clayton Anti Trust Acts, which allowed the national government to break apart trusts in the interest of fostering competition. The Interstate Commerce Commission was also established to deal especially with the railroad industry.
The distribution of patronage (jobs, contracts, licenses, favorable regulations, etc. . .) by the executive branch was one of the factors leading to the development of strong political parties. They also allowed the president to have strong control over the bureaucracy. This could be a problem if the purpose of the control was to ensure the continued political support of the bureaucracy and anyone else who could be persuaded or intimidated by bureaucratic officials.
Theodore Roosevelt and the Progressives.
Theodore Roosevelt was one of the more dynamic, if not in fact the single most dynamic, Presidents the country has had. Apart from his innate tendencies in this direction, he was president during an epoch where national, executive power in the service of certain social goals was most useful. This was the Progressive Era. Progressives argued that new sets of problems were facing the country due to industrialization and that only the national government was suited to address these problems. Roosevelt was well suited to carry the progressive torch by disposition and due to his approach to the Constitution. He famously saw himself as an active steward for the best interests of the country as he saw it, and choose to interpret the Constitution broadly in order to justify these activities.
A variety of agencies were created piece by piece during this era addressing various problems as they presented themselves
- The Food and Drug Administration
- The Federal Radio Commission
The Growth of Federal Law Enforcement.
Apart from a brief and cryptic mention of "domestic tranquility" in the Preamble, there is nothing in the Constitution about criminal law. These fall under the reserved powers of the states, as established in the 10th Amendment. But criminal activity is not simply intra-state, it crosses state borders easily. Interstate crime became increasingly common as technology made communication and transportation from state to state easier. What made this constitutional is the simple fact that interstate crime is also interstate commerce, which is clearly a power of the national government. States cannot regulate interstate commerce, so they cannot engage in interstate law enforcement. Though national law enforcement originally operated on the jurisdiction established in the Interstate Commerce Act, it gradually became part of the Justice Department.
The creation of the FBI was unusual. Congress, when it passed the Interstate Commerce Commission, established the authority for the federal government to become involved in national law enforcement, but it did not create an agency to do it. The FBI was created within the Justice Department to handle thsi responsibility. Congress simply did not object to the establishment of the agency.
Prior to the development of the Federal Reserve System, and actually not until certain rudimentary economic principles were discovered, the American financial system was laissez-faire and prone to booms and busts. Wild euphoric economic expansions would cause to factors which would lead to crashes. The recent housing bubble is an example of the type of this type of boom and bust cycle, which was very common from the establishment of the country through the Great Depression. One of these crises, the crash of 1907, was resolved only by the influence of J.P. Morgan, who as the most influential banker at the time. Future crises were unlikely to be dealt with in the future by similar influential individuals. In response, Congress passed a series of laws culminating in the Federal Reserve Act of 1913, which established the Federal Reserve System.
The Federal Reserve is, in essence, the central bank of the United States. Its clients are in essence the other major banks that you and I deal with. It has small range of things it can do, but these have a major impact on the health of the economic system. These all fall under the heading of monetary policy, and involve setting the value of money or providing access to it. The one we are most familiar with is setting the discount rate, which is the rate at which member banks are charged for borrowing money. Providing access to capital, being the lender of last resort, is simply to ensure that the country does not slip into another depression. Creative ways have been developed to provide funds for banks in order to prevent this from occurring, many have not been made public, which had led many to call for increased transparency in the Fed.
Until the 20th Century, the size of the national government was relatively small and most governmental functions were performed at the state level. This began to change in the early years of the 20th Century, driven to a large degree by the Progressive Movement, and hit new heights with, first, the New Deal, and second, the Great Society. Prior to these increases however, new sources of funding were found for the national government. Previously tariffs and temporary income tax systems provided the funds for national policies, but the ratification of the 16th Amendment provided a new consistent source of funds. It also required a budgeting process that could keep track of the increased revenues and expenditures.
As long as the scope of the national government remained small, there was little reason to keep track of funds. This changed as revenues and expenditures increased. Several bills were introduced establishing and modifying the budgetary process in the legislative and executive branches. Congress has the final say on how much money and on what, but the executive branch initiates the process by proposing an initial budget to Congress. The Office of Management and Budget is responsible for putting the budget together. Naturally the head of this agency has emerged as one of the more important people in the White House.
The U.S. has been argued to have undergone two significant "constitutional revolutions" since the document was originally ratified. The first followed the end of the Civil War and the addition of three key amendments, the most important being the 14th Amendment. The national government stated that the citizens of the several states were also citizens of the United States and were entitled to the privileges and immunities established in the U.S. Constitution. This effectively, albeit slowly, made the national government a guardian of individual rights, much to the chagrin of the states. It marked a dramatic expansion of national power and an important shift in the relationship between the national and state governments.
So did the second constitutional revolution, the New Deal. The New Deal is the name we give to the variety of programs and agencies created by Franklin Roosevelt's Administration and the Democratic Congress following the election of 1932 and the deepening of the Great Depression. The Great Depression provided an impetus for the passage of legislation addressing the problems caused by that economic collapse. This entailed the use of national power as the mechanism to address these problems. Over the course of several years, the national government claimed authority to regulate aspects of economic life that it had previously left to the marketplace. This included the sales of stocks and bonds and the sale of agricultural products. It also established new programs providing old age pensions and forcing corporations to recognize labor unions.
As with the first constitutional revolution, this marked a significant expansion of national power, but while the former was based on constitutional amendments, this revolution was due to simple redefinitions of constitutional language, notably the term commerce. After defining the term narrowly in previous cases, interpreting it to simply mean the sale of finished products, the terms was broadened to mean also manufacturing and labor. "Interstate Commerce" was also broadly defined to refer to amy commercial activity that has an impact on interstate commerce even if the specific transaction is purely intrastate.
This provided a constitutional basis for New Deal programs, and only took hold once supporters held on to the executive and legislative branches long enough to change the composition of the Supreme Court and ensure that its members would hold a broad understanding of the role of the national government. This is perhaps the most significant outcome of the New Deal. The programs passed into law were simply those that had been developed by the Progressives over time. The New Deal simply increased the scale of these programs and provided a constitutional (albeit loose) justification for those programs.
The expansion of the national power also expanded the power of the chief executive. After years of playing institutional second fiddle to the legislature, the executive began to take center stage in governmental affairs. Several factors led to this:
1. The establishment of executive agencies
2. The development of modern communications technologies
3. The increasing importance of issues which fell primarily to the executive
4. The personality of FDR.
The Brownlow Committee and the Executive Office of the Presidency.
By the late 1930s, and after the creation of a good handful of new agencies, the burden these new institutions created for the president became apparent. A commission, headed by Louis Brownlow was established to determine how the executive branch could be restructured to allow for more effective management of these new responsibilities. Not all the committee's recommendations were adopted, but one was. The Executive Office of the President was established in order to provide administrative, policy related support for the president.
Perhaps the most consequential restructuring of the executive branch in recent history was the establishment of a permanent military apparatus following the end of World War II. Before then, a military was created fresh whenever war was declared. Peacetime armies were resisted, partly due to age old fears that they would enable the executive to rule corrosively. The creation of the Department of Defense changed this and created a peacetime military, including a sophisticated intelligence community.
Beginning in 1789, the military was comprised of separate departments (War, Army, and Navy). Other institutions were created from time to time, but they all existed within their own spheres. This made coordination difficult. The construction of the Pentagon was spurred by the need to enhance coordination at the beginning of World War II. The creation of the Department of Defense, with each of the separate military institutions as agencies with it, has led to a peacetime defense force that is around 25% of the U.S. budget.
An additional feature of militarization, though we generally do not think of it this way, is the creation of the interstate highway system. President Eisenhower was apparently impressed with the German autobahn which allowed the German army the ability to quickly move from one battlefield to another. As a lower ranking officer he was involved in a weeks long movement of troops across the country. These two experiences led him to push for the creation of an interstate highway system which not only allows for troop movement but helped spur the growth of the automobile industry, to say nothing of McDonald's and Stuckey's.
As was the New Deal, the Great Society was a collection of policies designed to address poverty. The difference was that while the New Deal focused on the poverty that occurred as a result of the Great Depression, the Great Society was focused on pervasive, permanent poverty. The term War on Poverty was used by President Johnson as way to sell his proposals. Many of the laws that were passed had been proposed by progressives in the early 20th Century, and some had been proposed during the original New Deal, but had not been feasible until the 1960s. Kennedy had proposed, though not pushed, some of this legislation, but after his assassination, Johnson was able to persuade Congress to pass a significant amount of these proposals into law. These include the following:
In the 30 years following the end of World War II, the US's status in the world increased significantly. This included involvement in two large armed conflict in Korea and Vietnam. Covert and diplomatic involvement also increased. What this meant for the presidency was that its role increased in relationship to Congress. As mentioned above, whenever foreign affairs dominates politics, the presidency becomes more important. This was argued by historian Arthur Schlesinger Jr. to have led to the development of an Imperial Presidency which claims powers far beyond what was originally intended in the constitution. He argued that this was a slow incremental process that reach its apex in the Presidencies of Johnson and Nixon.
The Reagan Revolution and the Contract with America.
The expansion of the federal government that had continued through the imperial presidency led to a reaction. The candidate who was best able to take advantage of anti-government sentiment was Ronald Reagan in 1980, and later Republican congressional candidates in 1994 who ran under Newt Gingrich's Contract with America.
The 1990s was an unusual time in American politics. We were not at war and the economy was booming. The need for presidential leadership was at a low point and commentators remarked on the disappearing power of the president. The beginning of this trend was the fall of communism in 1989. Though conflicts in Panama and Iraq did occur, the ongoing threat of nuclear attack ended with the demise of the Soviet Union. With it went the need for a commander in chief.
9/11, The Great Recession and the Re-establishment of Presidential Power.
Since the dawn of the 21st Century, the United States has suffered a terrorist attack -- and two armed conflicts related to it -- in addition to two recessions, one being the most severe since the Great Depression. Altogether these have led to the reemergence of presidential power, one that could potentially be as powerful as the imperial presidency.
Past Written Assignments:
1. Over the course of American history the size and power of the executive has increased substantially. Some argue that it has grown too fast, but others suggest that increased powers are necessary considering the nature of existing technology and America's standing in the world. Review the readings above and provide critical commentary on that subject.
2. The Obama Administration reflects a significant shift in the nature of policy-making in the White House. Using your searching skills, I want you to detail one of these shifts. Find a policy set in the Bush Administration that has been changed in the Obama Administration and outline the process that led to that change.
3. One of the factors that has led to the increase of presidential and bureaucratic powers is the network of interests that develop between private interests and the public sector. The term most often used is an "iron triangle." It refers to the link between executive agencies, legislative committees, and interest groups that tend to perpetuate existing policies. Using the link above, try to identify an iron triangle that exists today and the relationships that keep it in place.
4. The functions of the presidency have expanded considerably since the nation was first established. I want you to describe these changes by comparing the nature of the presidency of George Washington with that of Barack Obama. How has the institution changed over the 200+ years between these two men? How has the nature of the office, as well as out expectations of what presidents should do, changed as well?
5. This question builds off the one above. Two major periods of expansion of presidential power -- and federal power in general -- were the New Deal and the Great Society (see the links above). What specific expansions occurred during each period, and factors drove them?
6. The presidency of Ronald Reagan can be best understood as being a reaction to the expansion of governmental power that had occurred during the previous few decades. How did he attempt to reduce the size of government? Was he successful?
7. As we know, one of the president's constitutional functions is to make proposals to Congress. This doesn't mean that Congress always complies. Obama has the advantage of working with a Congress controlled by his party, but conflict can still exist between the two branches. Using news sources, review the relationship between the Obama White House and Congress. Is Obama able to influence Congress? Is Congress acting independently of Obama? Giev examples.
8. Today's national executive branch is much larger than what existed when Washington was president. Provide an account of the factors which led to the increase in its size and functions.
9. One of the more important functions performed by the national government is management of the nation's economy. Detail the evolution of this process beginning with Hamilton's proposals and through the creation of the Federal Reserve System. The Fed has been criticized recently over its handling of the economy and proposals have been made for it to change how it oversees the banking system. What are these proposals?
10. The New Deal and Great Society were two periods of major expansion of national power. Describe each period. What factors lead to them? What were the precise accomplishments of each period? What criticisms are made of each?
11. Since health care reform is still in the news, detail the current state of the national government's role in health care. What reforms are being proposed? Why?
These will be tweaked a bit more, but they are sufficient for the assessment (3/4/12)
As with the legislative branch, the precise design of the executive branch is not detailed in the Constitution. Some argue--with reason--that today's executive branch bears little relationship to the one that existed when George Washington was president. From a small group of people with narrowly defined functions, the executive branch now has grown substantially and is composed of people who often have an aggressive vision of the role they should play in everyday life. This doesn't mean that there weren't individuals early on who wanted to expand the size of government. There were, notably Alexander Hamilton, if not the Federalists in general. They considered aggressive governmental involvement in the economy and land acquisition to be essential to fostering the prosperity of the country.
As this process has evolved, and occasional crises have occurred, the scope of governmental functions has expanded. To see an example of this, look at the nature of the institutions in the Washington Administration and compare it to the range of institutions that exist in the current administration. You might find this A-Z listing of agencies interesting or maybe frightening depending on your political persuasion.
In this section we will trace the development of the executive branch as well as the development of the White House. The timeline below lists the major steps in the branch's evolution. As you can see, bit by bit the functions of the executive branch has expanded, largely due to the passage of laws which grant it new authority, generally in response to some event which led to a political push to grant it that authority. As the responsibilities of the office expanded, so did the pressures placed on the president, which led to the development of a larger White House staff that allows the president to manage these increased responsibilities. Despite attempts to constrict executive powers, its powers are still considerably greater than those granted to it in the early days of the republic.
Goals: You should be able to address the following after reading through this material.
An Executive Timeline:
1789: George Washington becomes first president.
1789: Department of War established.
1789: Department of the Navy established
1789: Department of Stateestablished.
1789: Department of Treasury established.
1789: First Attorney General appointed.
1791: First National Bank chartered. Charter expires in 1811.
1803: Thomas Jefferson completes the Louisiana Purchase.
1803: Jefferson also authorizes the Lewis and Clark expedition.
1816: Second National Bank chartered. Charter expires in 1836 and was not renewed.
1849: Department of the Interior established.
1857: White House Office established.
1861: Abraham Lincoln becomes president. Is generally regarded as being the greatest president.
1862: The Pacific Railways Act passed.
1862: Department of Agriculture established.
1862: The Homestead Act passed.
1863: National Banking Act passed.
1870: Department of Justice established.
1883: Civil Service Commission established.
1887: Interstate Commerce Commission established.
1906: Food and Drug Administration establised.
1908: Federal Bureau of Investigation established.
1913: Department of Commerce established.
1913: Federal Reserve System established.
1913: Department of Labor established.
1913: The 16th Amendment ratified and the income tax authorized.
1921: Bureau of the Budget established. Becomes the Office of Management and Budget in 1970.
1929: The First White House Press Secretary hired.
1933: Franklin Roosevelt becomes president. The New Deal begins.
1934: Federal Communication Commission established.
1934: Securities and Exchange Commission established.
1935: Social Security Administration created.
1937: The Brownlow Committee recommends reorganization of executive branch.
1939: Executive Office of the Presidency established.
1939: White House Office reorganized.
1946: First White House Chief of Staff hired.
1946: The Council of Economic Advisers established in the Employment Act of 1946.
1947: Military establishment consolidated in a Department of Defense, as authorized by the National Security Act.
1947: National Security Council established. First National Security Advisor appointed in 1953.
1947: United States Intelligence Community also established by the National Security Act.
1953: Department of Health, Education and Welfare established. In 1979, divided into Department of Health and Human Services and Department of Education.
1956: National Interstate and Defense Highway Act passed.
1964: The Great Society begins
1964: Civil Rights Act passed.
1964: Economic Opportunity Act passed.
1965: Elementary and Secondary Education Act passed.
1965: Medicare established.
1965: Medicaid established.
1966: Department of Transportation established
1970: Environmental Protection Agency established.
1977: Department of Energy established.
1981: Economic Recovery Tax Act passed.
1981: "Reagonomics" instituted in an attempt to roll back the size of the national government.
1988: Department of Veterans Affairs established.
1994: Republicans gain control of Congress running on the Contract with America.
1996: Welfare Reform -- the Personal Responsibility and Work Opportunity Act -- passed.
2003: Department of Homeland Security established.
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The Expansion of the Executive Branch.
In the sections below I trace the evolution of executive power. This is a controversial topic since many argue, with good reason, that executive power in the United States has far surpassed what was originally intended by the authors of the Constitution. The idea that the powers of Congress are limited to only those delegated to it in the Constitution, plus the requirement that executives faithfully execute the laws, suggests that presidents can only do those things that it has been granted to do either in the text of the Constitution, or by congressional mandate. But as we have seen, there is some slipperiness in the language. An early proponent of strong executive power, Alexander Hamilton argued for loose interpretations of the Constitution and the notion that the document implies that certain things can be done, even if specific language does not grant that power. Hamilton, as we know from the previous section, proposed not only the single executive, but had been in favor of an executive that would serve for life.
As the first Secretary of the Treasury (Washington's first selection was Robert Morris -- Morris attended the Constitutional Convention and nominated Washington to serve as its president), Hamilton would argue that implicit with the language of the constitution were powers necessary and proper to carry out the commercial powers clearly delegated in the document. The Treasury Department was one of the first executive departments established -- along with War and State.
Aside from contemporary critics of Hamilton, Andrew Jackson represents the strongest opposition to Hamilton's theories regarding presidential power. Jackson favored narrow readings of constitutional language that would deny many powers to the executive. Ironically, the circumstances of Jackson's election, especially his popularity with the general population (along with his decision to veto the bank bill) led to concerns about his power and to increasing references to him as King Andrew. The opposition partywhich developed at that time adopted the name Whigs in reference to the movement in Britain which opposed the power of the monarch and led to the development of a constitutional monarchy.
Passive and Active Presidents
Disputes over the proper role of the president would continue, and still do. Two general statements concerning the dispute over the president's role are contained in these two statements from, respectively, an active and passive president:
The Activist: Theodore Roosevelt:
My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin . . . . My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the president and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition.
Roosevelt was a proponent of progressivism. Among the things Roosevelt did during his presidency that presidents previously had not done included actively breaking apart monopolies (trust busting), regulating the railroads and the economy in general, the creation of the Food and Drug Administration, promoted conservation, made minor steps towards establishing civil rights for African-Americans, increased activity in world affairs, negotiated the end of the Russo-Japanese War, helped facilitate the construction of the Panama Canal by encouraging Panama to break from Columbia, among many other items.
The Passivist: William Howard Taft.
The true view of the executive function is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must either be in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to be to him to be in the public interest, and there is nothing in the . . . law of the United States, or in other precedents, warranting such an inference. . . .[His] jurisdiction must be justified and vindicated by affirmative constitutional or statutory provision, or it does not exist.
Taft, who after his presidency would become Chief Justice of the Supreme Court, saw a more restrained role for the Chief executive. But the difference in the two philosophies outlines the key distinction between the presidencies of (roughly) the 19th Century and the 20th and 21st Centuries. The former were generally passive, if not due to a philosophical disposition towards the constitution and the appropriate nature of executive power, at least in terms of what actual power existed in the office. Even if they wished to accomplish much, they lacked the executive infrastructure to make it happen. In the later years of the 19th Century and the early years of the 20th, this would change.
The president would shift from being a "chief clerk" which only carried out the dictates of Congress, to the "modern presidency," beginnign with Franklin Delano Roosevelt, with a communications, advising, and administrative capacity to set, sell and implement an agenda, sometimes over the heads of Congress. The power of the office grew to a point where some began worrying about the potential for abuse. This came to a head during the presidencies of Lyndon Johnson and Richard Nixon who were each accused of using investigative and surveillance powers for political purposes. The term "imperial president was coined to refer to that era. As factors have changed, there has been speculation that the powers of the president have in fact diminished. Have we now entered into a post modern age where the president must share powers he once had full control over?
The Chief Clerk: 1789 - 1937
The Modern President: 1937 - ?
The Imperial President: 1963 - 1974 (LBJ - RMN)
The Post Modern President: 1989 - ?
The Mechanism for Presidential Power.
The increase in presidential and/or executive powers occurred slowly over a number of years due to a variety of factors.
1 - The increased size of the bureaucracy and the development of relatively autonomous bureaucratic agencies.
2 - The development of a sophisticated advising sytem that assists the president in carrying out duties.
3 - An increasingly sophisticated and comprehensive media technology that allowed the president the ability to push an agenda to the general population.
4 - A Supreme Court that has accepted a loose interpretation of constitutional language relating to executive power.
More on each:
1 - The Bureaucracy.
The executive department, and the president along with it, has become more powerful simply because its jurisdiction has As detailed in the timeline above and the text below, the size of the federal -- as well as state and local governments -- have increased as additional functions have been added to it bit by bit. This is the bureaucracy. The bureaucracy, in fact, implements policy. While the chief executive, whether on the national or state level, may set general guidelines for how a policy should be implemented, the actual work is done by the civil servants who work in bureaucratic agencies. Any government official you are likely to encounter on a daily basis is a bureaucrat. The bureaucracy can be defined as "the combined organizational structure, procedures, protocols, and set of regulations in place to manage activity, usually in large organizations." This means that bureaucracies can exist in private as well as public organizations. The fact that chief executives come and go, while members of the civil service generally makes careers out of holding onto their jobs, there can be conflict between the two. It is not unusual to hear presidents after they leave office to complain about how little impact they really had over how the bureaucracy operates. Top bureaucratic officials often attempt to persuade presidential advisers, Cabinet members for example, to make decisions more inline with the desires and opinions of the agency rather than the White House. Perhaps the most fascinating recent story in this line was when Mark Felt, an FBI agent who rose to become Assistant Director, chose to become an informant to Woodward and Bernstein as they investigated Richard Nixon's role in the Watergate scandal. Felt was worried about Nixon's efforts to undermine the agency and successfully worked against him.
Overtime, hundreds of agencies have been established to deal with the many problems has chosen to address. As important, if not more important, than the fact that the size of government has grown, is how it has grown. As public problems emerge and solutions are developed in the legislature, agencies are often created to manage whatever solution is developed. For example, the problem posed by old age poverty was solved by the establishment of a pension system managed by the Social Security Administration. More recently, the health care bill established the National Prevention, Health Promotion and Public Health Council and the financial services bill established the Financial Stability Oversight Council. When Congress establishes these agencies it grants them rulemaking power, which is the ability to make decisions about how a particular law can be implemented. These rules are made by the career civil servants who run these agencies that determine how in fact the general guidelines established in the law are carried out. This of course can crate a problem for two reasons, first, since they are not elected, they are making decisions that the general population cannot effectively respond to through the ballot box. For some this can be an advantage however because it can ensure that certain decisions are immune from the political process and are handled in a neutral, detached professional manner. Second, rulemaking is very similar to lawmaking. The distinction between the two is sometimes blurred. If that is the case though, the executive branch has encroached upon the legislative branch and violated the doctrine of separated powers. Occasionally rules are in fact struck down by the Supreme Court for that very reason. In FDA v. Brown and Williamson Tobacco, the Supreme Court ruled that FDA attempts to regulate the advertising of tobacco to minors exceeded its authority as an administrative agency.
Executive agencies come in a variety of forms. The Constitution mentions the existence of executive departments each with a "principal Officer" at their head. The principle officer of each executive department is called the "secretary." Together these individuals, plus a handful of others, is called the United States Cabinet. Among the first acts of Congress was the creation of the State Department (the Department of Foreign Affairs) -- over a dozen other would follow in due course. Within each department are a variety of bureaus, offices and agencies which do actual, specific dirty work. These agencies can have clearly defined, narrow tasks. Click here for the organizational flowchart of the State Department. The majority of agencies exist within the structure of one of the cabinate level departments, but many are independent. Example of independent agencies include the Central Intelligence Agency, the Environmental Protection Agency, and the Federal Communications Commission. Independence is sometimes granted to an agency in order to remove them from the, sometimes politically motivated, influence of the White House. Examples of agencies that are not independent, and therefore may be more subject to control by the departmental secretary, include: The Forest Service (in the Department of Agriculture), the Center for Disease Control and Prevention (in the Department of Health and Human Services), and Federal Bureau of Investigations (in the Justice Department).
Here are clearer descriptions of each.
United States Federal Executive Departments: One of fifteen collections of bureaus, agencies and other groups charged with implementing statutory law.
Independent Agencies: These are independent because they have jurisdictions that lie outside the scope of one of the fifteen cabinet level departments. They tend to be one of three types: Executive agencies, Regulatory Agencies, and Government corporations.
Government Sponsored Enterprises: These are a handful of government backed corporations that deal primarily with financial services. They are intended to ensure that credit is made available to targeted sectors of the economy. These include Fannie Mae and Freddie Mac.
Here is a list of executive branch agencies.
Regulatory Capture and Iron Triangles: One of the primary problems that occurs with any of these agencies is when a vested interest attains enough political strength to control one of these agencies, especially a regulatory agency, and then is able to control the regulatory process, often then the regulatory agency winds up issuing regulations that benefit the regulated industry rater than the general public. This is called regulatory capture. When an interest group is able to control an executie agancy this creates one leg of the iron triangle.
2 - Presidential Advising Systems:
Presidents rely on a variety of advisers clustered into one of three advising groups: The Cabinet, The Executive Office of the Presidency and The White House Staff. Of these the White House Staff tends to contain the president's strongest advisers. Given the increased responsibility of the president, a strong advising system has become necessary for president to get things done successfully. But there can be tension between these groups, meaning that a president can get conflicting advise and ultimately must
We discussed the Cabinet briefly above. The cabinet is composed of the secretaries of each of the fifteen executive departments, but can also include whichever heads of independent regulatory agencies the president considers especially important for his agenda.
While Cabinet members are responsible for the implementation of legislation within their jurisdiction, the Executive Office of the President is primarily about collecting and analyzing data and presenting policy options to the president, and other key members of the executive branch. The White House Staff works directly for the president and, to put it simply, is responsible for organizing the president's day and making the president look good. A key difference between these three is that while members of the first two (The Cabinet and Executive
Office of the President) must be confirmed by the Senate, members of the White House Staff are hired and fired directly by the President, this makes it more likely that close loyal individuals will be found in the White House Staff. Those people may not survive the Senate confirmation process. There is an ongoing question about whether the Senate should second quess the decisions Presidents make about who they would like to give them advise, but the fact is that every President takes the confirmation process, and the dirt that might come up around a nominee, into consideration when they decide whom to appoint.
The Cabinet has increased in size as the number of executive departments has increased, but the Cabinet is not where one finds the closest advisers to the President because they don't simply serve the President, they heads a bureaucratic structure that predates the presidency they serve, and was set in place by Congress. The concept of a Cabinet evolved early in Washington's adminitration when the Washington attempted to seek the Senate advise and consent on an issue, but did not receive it. There was a question involving how the advise and consent clause should be interpreted. Was it advise ahead of time on matters related to appointments and treaties, or was it advise given after a decision had been made. Washington opted for the former, but failed to receive the advise he was hoping to receive. He then began the habit of consulting the heads of his executive agencies, and the term "cabinet" emerged. As the bureaucracy has increased however, Cabinet secretaries have found themselves torn between them and the White House. While they oversee the implementation of the President's agenda, they are also subject to review of the actual facts that civil servants face when implementing the laws. This creates a pull between orders from the top and the facts on the ground. This often creates tension within the secretary. Since agencies are charged with implementing laws passed by the legislature, the secretaries are also subject to give testinomy to Congress -- this is Congress' oversight authority. In short, Cabinet secretaries cannot always be relied on to carry out the dictates of the President since they are subject to other constituencies.
A secondary issue also makes Cabinet secretaries less likely to be close advisors to the President. Since the Cabinet is assumed to be a powerful institution, President's often use Cabinet positions to placate constituencies they consider part of their coalition, or groups they would like to get electoral support from. This means that the principle reason why someone might be placed in a cabinet position has lees to do with their actual qualifications than their connection with a group the President needs to be supported by. This isn't necessarily true of the the top Cabinet positions, the people that are termed the "inner cabinet." These are the heads of the department of Defense, State, Treasury, and Justice. It isn;t unusual to hear stories of some presidents having no personal relationship at all with some Cabinet members. This does not bode well for advising.
The Executive Office of the President was created following the suggestion made by the Brownlow Committee in the late 1930s that the President needs help mamaging the executive branch. This was little surprise given that the1930s witnessed an unprecedented increase in the size and functions of the executive. A small informal network was no longer sufficient to figure out what to do with these new programs and duties. In the subsequent legislation, the Reorganization Act of 1939, which allowed the president to create new offices composed of individuals who would provide policy related advise over specific matters. Budgetary matters are handled by the Office of Management and Budget; Economic advise is provided by the Council of Economic Advisers; Security advise by the National Security Adviser, and on and on. See the link above for a full list of the positions. Again, though the heads of each of these offices serves the function of adviser, proximity does not necessarily equal trust. Top appointees have to be confirmed by the Senate and that limits who might get the nod.
This does not apply to the White House Staff. The President has full discretion in choosing who he would like to serve ith him. The Senate plays no role in the selection. Often the White House Staff is full, at least initially, of people who played major roles in the President's campaign for the office. A President's campaign manager often become a domestic policy adviser within the White House. This was true for David Axelrod and Karl Rove. Obviously someone who has had a trial by fire with the President, will be a very close confidant. The fact that they are primarily political people means that they have likely made plenty of enemies, some of whom are likely to be in the Senate. The top position in the White House Staff is the Chief of Staff, who is responsible for the President's day. Often thsi person serves as a gatekeeper to the president, meaning that if you want to see the President, you have to be scheduled in by the Chief of Staff. Beneath this office are policy advisers, comminications directors, legislative liasons, speechwriters, travel planners, pollsters, and many others. Its similar to the staffs that many members of Congress have, but exponentially bigger -- recent White Houses have employed 400 - 500 people. Think of these people as the ones responsible for making sure that President makes the right speech to the right people, in the right place, with the right background and lighting, at the right time. It ain't easy.
A final point. The fact that these people do not have to be confirmed by Congress makes it more likely that these people will be loyal to the President (willing to fall on their sword if necessary) and to be controlled by the President as well. It also has meant that the White House Staff is where scandals are most likely to occur. Watergate, Iran-Contra, Monica Lewinsky, and the Firing of Justice Department Lawyers were scadals in our recent presidential administrations, each perpetuated by the White House Staff.
3 - Media Technology
Media technology conditions how people can communicate to each other. As media technology has improved from the printing press and the horse and buggy to the internet, the entire nature of the relationship between individuals has changed as well. This extends also to the presidency and how the office can connect with, and potentially mobilize, the general population. Over the past 100 years especially (with the dawn of radio and television communication), media technology has grown increased sophisticated. Up until recently, these advances have helped the president more than the other institutions since the president is in a better position to command the airwaves. This is because the executive branch, since it is headed by a single individual, is better able to take a single solid message to the public. Neither Congress not the judiciary can do the same. Recall that Congress is not only bicameral, but is dominated by two large political parties. The Senate is also structured in such a way that each individual Senator can inject him or herself in the middle of the legislative process. As an institution it cannot speak with one voice. But at least it has the inclination to speak to the public, the courts do not, they don't have to, especially the national courts. The Supreme Court never makes a big media event out of its decisions, it simply releases them. It never holds press conferences to discuss its decisions, it allows external actors to do that for them.
20th Century advances in media technology allowed the president to forge a relationship with the general population that previous presidents could not. Though there were attempts to make presidents the focus of attention during campaigns, the effort was made by others, not the president -- or candidate -- themselves. As a practical matter, during the 19th Century the average citizen was more likely to have a connection with their congressional representative. That would have been the person they would most likely have had the opportunity to meet, spoken with or heard speak in person. This fit the very purpose of the House of Representatives. It was to be the glue that connected the general population with the natinola government. Once the president could use radio or television to directly address the general population, this dynamic changed. A president, especially one with charisma, could forge his own unique relationship to the population and a bond could be established between the public and the individual. The stronger the bond, the better able the president could be to go over the heads of Congress and sell his agenda to the people. Theodore Roosevelt noted the unique opportunity the office allowed the occupants what he called a bully pulpit for advancing an agenda.
The classic example of this was FDR and his fireside chats. It has to be noted that prior to his presidency, the nation underwent an economic boom which was driven in part by a growing market in the sale of radios, as well as the development of radio networks. By the time he became president, listenign to radio programming was part of the typical day of most Americans. It also has to be noted that FDR has a personality conducive to successful radio addresses. He had a calm radio voice that was able to connect with people in a way that made them more likely to support his legislative agenda, and not that of Congress. The limited number of radio networks also made it easier for the president to request and receive radio time that would then dominate the air waves. For the duration of the speech, there was practicaly nothing else to listen to. The rise of radio also impacted the types of individuals that could sucessfully run for the office. One had to be able to communicate well over the medium. This was especially true for television, which became an emerging factor in the early 1950s and more dominant as more people purchased televisions. Famously, the 1960 presidential debate benefitted a calm, tanned, attractive Kennedy more than a nervous, jittery Nixon. Visual cues began to affect what types of people (tall, poised, good hair) were electible, but again the fct that there were a small number of networks, and no comparable communications device for Congress enhanced the rise of the modern president to almost an imperial level.
Beginning with FDR and going through at least the Reagan administration, presidents continued to own a practical monopoly on the airwaves, but late in the Carter Administration a change began to occur that would slowly change that. Cable television was developed and would vastly expand the number of news outlets, and channels in general, available. Ted Turner launched CNN, a 24 hours news network. This created a larger platform for political news that allowed more coverage of Congress, and more opportunity for individual members of Congress to take their message to the public. Television cameras were placed in the House of Representatives and then the Senate. Rising stars like Newt Gingrich were able to make speeches on the floor of the House -- when no one else was present -- not to speak to the House, but to the nation. As more politically oriented news channels emerged, many with ideological agendas, a president could no longer dominate the media. The media environment was too vast and diverse. The attempt is still made, through the office of communications, but it increasingly difficult.
Along with cable, computer and internet technology became more user friendly, powerful, and common. This placed additional restrictions on the bully pulpit. Sophisticated and simple software programs make it easy for anyone to start a website and send out a message, some of these can gain currency and influence the political debate. The recent rise of the blogosphere allows anyone with a blog to be, or attempt to be, an opinion leader. And more recently, Facebook and Twitter have expanded these opportunities. Twitter alone seems to have destroyed the ability of the president to use the state of the union address to impact Congress' agenda. In recent addresses given by Obama, key Republican leaders used Twitter to instantaneously respond (negatively) to Obama's statements. If anything the current trajectory of communications technology will lead to even further decentralization of the media, and less and lessopportunity for any president to drive an agenda.
4 - Supreme Court Decisions
Finally, none of the expansions of executive power would have been possible without a Supreme Court that reinterpreted key parts of the Constitution -- primarily the commerce clause -- to allow for the agencies established in the 20th century to stand constitutional challenge. This was a key part of 2301 during our discussion of federalism and the expansion of national power that began in the late 19th century and was furthered in the New Deal and the Great Society. That discusion is applicable here as well because to say that national power has expanded is the same as saying that national executive power has expanded. But this expansion has to survive court challenges that the laws passed by Congress are constitutional, This should sound familiar if you have been following the news since opponents of the health care bill -- the Affordable Care Act -- are making the same argument. Again the argument comes down to whether the act fits within the Supreme Court's definition of the commerce clause.
It's appropriate here to revisit FDR's court packing scheme and the way that Constitution allows for executive and legislative manipulation of the judicial branch -- despite the checks and balances. Prior to 1937 the Supreme Court was dominated by forces hostile to the Progressive agenda. These forces had dominated the Supreme Court for decades. In 1905, for example, in the case of Lochner v. New York, they declared that a New York law limiting the hours a person is required to work was an unconstitutional violation of the implicit "freedom of contract." Similar national laws were struck down, but also because there was little support for the idea that the commerce clause authorized the national government to pass laws about labor since labor was part of the commercial process. When FDR is elected president in 1932, the court is intact and hostile to his agenda. Many of the early laws passed in the New Deal were found unconstitutional. The key case was Schechter Poultry Co. v. the U.S. (the sick chicken case) which declared the National Industrial Recovery Actunconstitutional. The act was a long involved bill which authorized executive actions to stimulate the economy, including the imposition of regulatory standard on the sale of goods, even within state borders. The Supreme Court struck the entire bill down on the grounds that Congress had delegated too much discretionary power to the executive branch, and that the national government had exceeded its delegated powers to regulate interstate commerce by regulating intrastate commerce.
All that changed in 1937 and the decision supporting the constitutionality of the Wagner Act and the establishment of the National Labor Relations Board (which still exists). This was the case that began the process -- which continued uninterrupted until the 1990s -- where the commerce clause justified a series of new laws and new executive agencies. Other parts of the Constitution have been used to justify other executive agencies. For example, two separate cases challenged the constitutionality of the Social Security Act, but each failed. In Steward Machine Company vs. Davis (see opinion). The question was whether the act, which mandated that states establish unemployment compensation funds violated federalism. Supporters successfully argued that the act was inkeeping with the ability to the national government to use its taxing powers to regulate economic activity and also fell within the general welfare clause. This decision was upheld in Helvering v. Davis.
It seems then that the size of the executive branch, more specifically the extent of its powers and duties, is in part determined by the disposition of the people who happen to be on the Supreme Court. Once FDR was able to appoint more people to the court, as was his successor Harry Truman, the court was primed to accept further arguments that executive powers needed to be expanded. Beginning with the 1968 election of Richard Nixon, but especially the 1980 election of Ronald Reagan, the nominees to the court began to have a more limited view of both the language of the Constitution and the role of the executive branch in national affairs. Some current justices are believed to be part of the Constitution in Exile movement, which would prefer to return to a pre New Deal vision of the size and roll of both the national government and the executive branch, at least in economic affairs.
In the following sections I attempt to trace the development of executive power bit by bit. What specific events lead to the development of each executive institution?
George Washington and the Early Executive
Aside from providing a model for the design of the singular executive as the presiding officer of the Constitutional Convention, Washington was fully expected to be the first person to hold the office. After his unanimous selection by the electoral college, he had to determine what in fact a president was to do and what the protocol would be for the office. He oversaw the creation of the first three executive departments (War, State and Treasury), in addition to the establishment of the office of the Postmaster General and the Attorney General, and the addition of the Bill of Rights to the Constitution.
Since he was the first president he would set the precedence for how all other presidents would conduct themselves in the office. Perhaps the most important precedent was the one established when he decided to step down after two terms in order to make it clear that the office was not a lifetime appointment.
- POTUS: George Washington.
Presidential Advising: The Birth of the Cabinet.
The Constitution, in several places, states that the President can perform certain functions with the advise and consent of the Senate, but there was little clarity about what the word "advice" actually meant. Was the president to actually seek the advice of the Senate before he made appointments and decisions on treaties, or could he approach the Senate after a decision was made? If it was the latter, and Washington believed that it was, then the President would look elsewhere for advise, assuming such advice was necessary. Presidents can always make up their own minds if they choose. After an unsuccessful attempt to use the Senate as an advisory body, Washington began using the heads of his executive agencies for advise. His most important adviser was Alexander Hamilton, his Treasury Secretary. But his cabinet also included Thomas Jefferson his Secretary of State, so it was safe to say that the Washington would be able to get expert, efficient and effective advise from the people in his inner circle.
Since then the Cabinet has held a special distinction among the general public. When the president needs good advice, he meets with the cabinet. Since the cabinet has grown over history -- see the timeline above -- one assumes that the quality of the advise has actually increased. But this is not necessarily true. Since cabinet officials have to be confirmed by the Senate, Presidents have had to take into consideration whether appointees are likely to pass confirmation. A President may wish to have a close personal adviser head an executive department, making him or her part of the Cabinet. But that person may not have the background to do the job, or may have skeletons in their closet that can trip up the nomination. Presidents put potential nominees through a vetting process where they try to determine if something in a person's background may cause a scandal that could not only derail the nomination, but the President in a bad light. Cabinets are often put together in such a way that they allow a president to connect to the constituencies that elected him to office. If this is the case, then there is little certainly that cabinet officials will actually be loyal to the president's agenda. John Ehrlichman, Richard Nixon's domestic policy adviser, often complained that some Cabinet members had "married the natives" and were more supportive of the needs of the lower level employees of the executive agencies they headed, than the president. His complaint illustrates the fact that Cabinet officials are not just there to advise, but to oversee the operations of government agencies.
As an institution, the Cabinet as a whole does not have that much influence over the president. As a group they rarely meet, and many have little face time with the President since they often have offices far away from the White House. This is not necessarily true of what is called the "inner Cabinet," which is composed of the heads of the original three departments plus the Attorney General (who was made head of the Justice Department in 1870). They do tend to have close proximity with the President, but even they can be in conflict with other presidential advisers. As we will see below, two separate institutions have developed as additional, and more effective, sources of advise for the president. One is the Executive Office of the President, which is a collection of institutions that only make policy suggestions to the president and other relevant officials, the other -- and perhaps the most important source of advising to the president -- is the White House Staff, which is composed of individuals hired directly by the president and not subject to Senatorial confirmation. More on both of these two institutions below.
- Senate.gov: The First Cabinet Nomination.
- Senate.gov: Nominations.
- [[http://www.fff.org/freedom/1095f.aspReturning to a Constitutional Cabinet|Returning to a Constitutional Cabinet]].
Neutrality.
Though independent, the United States was a small player in global stage and would be until the early to mid 20th Century. In his farewell address, Washington famously pleaded that the United States remain neutral on the world stage.
- Wikipedia: The Barbary Wars.
Alexander Hamilton and the Expansion of Presidential Commercial Power.
Alexander Hamilton may have been the principle driving force on the national level in the early years of the Republic. As Treasury Secretary, a position he sought despite being counseled against it, he was in an unique position to set the course of America's financial future. When we covered the drafting of the Constitution we discussed Hamilton's role in calling the convention in order to address the confederacy's inability to handle commercial disputes between the states. In his opinion, the future of America was jeopardized by its lack of a national financial system that could provide a base for commercial growth and a security apparatus that could protect trade. As Treasury Secretary he was in a position to address the former.
His most noteworthy accomplishment was to present to Congress three reports on economic policy. The First Report on Public Credit was intended to solidify the country's financial system and establish its credit worthiness. Retiring the national debt, as well as the debt of the several states that still had war debt was central to this effort. This included the controversial proposal that securities that were bought at less than face value, still be redeemed at face value. This was necessary to establish the country's credit worthiness. Funds for future endeavors were available largely because of the trust the country built up due to Hamilton's proposal.
The Second Report on Public Credit suggested that a national bank be charter in order for the constitutionally delegated financial powers to be efficiently implemented. The resulting bank, the First National Bank, was partially owned by the government, but privately operated. It became the depositor of governmental funds. The bank proved controversial for two related reasons. Some, Jefferson primarily, argued that its establishment violated the strict limits of the Constitution, but Hamilton created the concept of implied powers to justify its creation under the Constitution. This doctrine, and an elastic reading of other parts of the Constitution, was necessary to justify many of the other expansions of national power that have occurred over American history. The second conflict involved the propriety of the national government's establishment of an institution that could compete, probably unfairly, with state and private banks. As the powers of the states began to increase as the country grew westward, this fact would become increasingly politicized. We will cover it below when we discuss Andrew Jackson.
The report, the Report on Manufactures, urged the passage pf policies which would actively encourage the development of American industry. This included the use of limited tariffs to protect newly formed companies, subsidies to further encourage growth, and the development of internal infrastructure to facilitate the transportation and communication necessary to foster commercial transactions. This group of policies became key features of the growing political landscape as the Federalist Party became identified as the party of commerce, which allowed the opposition to define themselves as the party of the agrarian classes. These policies would later become part of the platform of the Whig, and then Republican Parties and would provide the basis for American economic policy-making until the Great Depression and the rise of Keynesianism.
- Wikipedia: The American School of Economics.
- Wikipedia: The American Plan.
- Wikipedia: Economic History of the United States.
Thomas Jefferson and Manifest Destiny.
Thomas Jefferson's presidency presents a curious contradiction. Prior to becoming president he expounded upon the virtues of state and local governments and argued against the expansive interpretations of the Constitution promoted by Hamilton. As President however he continued some of the economic policies of the Federalists, including the continuation of the national bank and the use of tariffs to support American industry. He was also responsible for using national power to facilitate westward expansion. This was primarily through the Louisiana Purchase and the funding of the Lewis and Clark Expedition.
The Louisiana Purchase was necessary, if for no other reason, because it allowed the United States to control the port of New Orleans. As long as it was controlled by France, commerce which flowed down the Mississippi could only head into the Gulf of Mexico with France's permission. as its turned out, Napoleon was in need of quick cash, due to rebellions in the Caribbean and his intent to invade Russia. Constitutionally, this created a problem because he needed the money so quickly, and was willing to sell to Great Britain if necessary, that the normal appropriation process had to be bypassed in order to make the deal. Once this was accomplished Lewis and Clark were sent on their expedition to map the territory.
Both events helped set the nation's continued course westward, a process that was later termed "manifest destiny," which was a term that held that the U.S. had practically a divine right to control all lands to the west. The terms was actually used to try to persuade American's to support the annexation of Texas and Oregon. Over the subsequent decades a variety of policies helped further westward expansion. The topic would dominate politics until the the late 19th Century when the Frontier was declared closed.
Andrew Jackson and the Rise of the States.
Prior to Andrew Jackson's presidency, presidents had only come from the original states, and actually only two: Virginia and Massachusetts. Being the First President from a western state, Tennessee (at least it was considered the west back then), Jackson brought with him the idea that states and local government should have more control over government than they had enjoyed previously. He was elected to office in 1828 after being denied the office in 1824 despite having been the plurality winner in both the popular and electoral college votes. He used this defeat to burnish his reputation as a common man and his opponents as members of a corrupt aristocracy. He used the spoils system, his personal ability to hire lower level members of the bureaucracy, to solidify his support with this constituency.
As president has sought to dismantle institutions which perpetuated elite privileges, most notably the national bank. The bank, he argued, benefited the financial sector at the expense of the agriculture. He vetoed a bill to recharter the bank and revoked its monopoly as a depositor of government funds, placing funds in state and private banks instead. His Indian removal policy opened land in the South for more agricultural development. Perhaps most importantly he appointed Roger Taney Chief Justice of the Supreme Court upon the death of the last Federalist in public office, John Marshall. During Taney's long tenure in office he made many decisions which reinterpreted the Constitution in a way that strengthened the states. His most important decision, Scott v. Sanford which was decided well after Jackson's death, declared the Missouri Compromise unconstitutional, limiting the ability of the national government to regulate slavery.
Jackson was still a supporter of the Union, and the power of the national government however. A controversy brewed over tariffs which benefited northern industry at the expense of southern states. His Vice President John Calhoun claimed that any state could ignore, nullify, a national law which it felt conflicted its interests. Jackson disagreed and threatened to send federal troops to enforce the law if necessary.
Abraham Lincoln, Presidential War Powers and the Birth of Industrial America.
Lincoln's presidency was a turning point in American history. In addition to overseeing the Union victory in the Civil War, he reestablished the United States on its march towards being a commercial republic, and effectively re-framed the constitutional order.
The Rise of Capitalism and the Push for Regulations.
The years following the Civil War were marked by significant industrial growth. This led to a change in American society which would have an impact on political competition. As industry grew, the agrarian sector shrank. Since industry was located in primarily in urban northern areas, its growth benefited urban America at the expense of rural America. The growth of industry also led to the development of large limited liability corporations, many of which grew to become monopolies -- then called trusts -- which had complete control over a specific sector of the economy. Concern over the abuses that seemed to accompany trusts led to the passage of the Sherman and Clayton Anti Trust Acts, which allowed the national government to break apart trusts in the interest of fostering competition. The Interstate Commerce Commission was also established to deal especially with the railroad industry.
- Wikipedia: The Interstate Commerce Act.
Civil Service Reform.
The distribution of patronage (jobs, contracts, licenses, favorable regulations, etc. . .) by the executive branch was one of the factors leading to the development of strong political parties. They also allowed the president to have strong control over the bureaucracy. This could be a problem if the purpose of the control was to ensure the continued political support of the bureaucracy and anyone else who could be persuaded or intimidated by bureaucratic officials.
Theodore Roosevelt and the Progressives.
Theodore Roosevelt was one of the more dynamic, if not in fact the single most dynamic, Presidents the country has had. Apart from his innate tendencies in this direction, he was president during an epoch where national, executive power in the service of certain social goals was most useful. This was the Progressive Era. Progressives argued that new sets of problems were facing the country due to industrialization and that only the national government was suited to address these problems. Roosevelt was well suited to carry the progressive torch by disposition and due to his approach to the Constitution. He famously saw himself as an active steward for the best interests of the country as he saw it, and choose to interpret the Constitution broadly in order to justify these activities.
A variety of agencies were created piece by piece during this era addressing various problems as they presented themselves
- The Food and Drug Administration
- The Federal Radio Commission
The Growth of Federal Law Enforcement.
Apart from a brief and cryptic mention of "domestic tranquility" in the Preamble, there is nothing in the Constitution about criminal law. These fall under the reserved powers of the states, as established in the 10th Amendment. But criminal activity is not simply intra-state, it crosses state borders easily. Interstate crime became increasingly common as technology made communication and transportation from state to state easier. What made this constitutional is the simple fact that interstate crime is also interstate commerce, which is clearly a power of the national government. States cannot regulate interstate commerce, so they cannot engage in interstate law enforcement. Though national law enforcement originally operated on the jurisdiction established in the Interstate Commerce Act, it gradually became part of the Justice Department.
The creation of the FBI was unusual. Congress, when it passed the Interstate Commerce Commission, established the authority for the federal government to become involved in national law enforcement, but it did not create an agency to do it. The FBI was created within the Justice Department to handle thsi responsibility. Congress simply did not object to the establishment of the agency.
- The FBI: A Centennial History 1980- 2008.
- Home Page: The Federal Bureau of Investigation.
- Wikipedia: The Federal Bureau of Investigation.
- Wikipedia: J.Edgar Hoover.
The Crash of 1907 and the Federal Reserve System.
Prior to the development of the Federal Reserve System, and actually not until certain rudimentary economic principles were discovered, the American financial system was laissez-faire and prone to booms and busts. Wild euphoric economic expansions would cause to factors which would lead to crashes. The recent housing bubble is an example of the type of this type of boom and bust cycle, which was very common from the establishment of the country through the Great Depression. One of these crises, the crash of 1907, was resolved only by the influence of J.P. Morgan, who as the most influential banker at the time. Future crises were unlikely to be dealt with in the future by similar influential individuals. In response, Congress passed a series of laws culminating in the Federal Reserve Act of 1913, which established the Federal Reserve System.
The Federal Reserve is, in essence, the central bank of the United States. Its clients are in essence the other major banks that you and I deal with. It has small range of things it can do, but these have a major impact on the health of the economic system. These all fall under the heading of monetary policy, and involve setting the value of money or providing access to it. The one we are most familiar with is setting the discount rate, which is the rate at which member banks are charged for borrowing money. Providing access to capital, being the lender of last resort, is simply to ensure that the country does not slip into another depression. Creative ways have been developed to provide funds for banks in order to prevent this from occurring, many have not been made public, which had led many to call for increased transparency in the Fed.
- The Structure of the Federal Reserve System.
- Wikipedia: The Federal Reserve System.
- Wikipedia: The History of the Federal Reserve System.
The 16th Amendment and the Budgeting Process.
Until the 20th Century, the size of the national government was relatively small and most governmental functions were performed at the state level. This began to change in the early years of the 20th Century, driven to a large degree by the Progressive Movement, and hit new heights with, first, the New Deal, and second, the Great Society. Prior to these increases however, new sources of funding were found for the national government. Previously tariffs and temporary income tax systems provided the funds for national policies, but the ratification of the 16th Amendment provided a new consistent source of funds. It also required a budgeting process that could keep track of the increased revenues and expenditures.
As long as the scope of the national government remained small, there was little reason to keep track of funds. This changed as revenues and expenditures increased. Several bills were introduced establishing and modifying the budgetary process in the legislative and executive branches. Congress has the final say on how much money and on what, but the executive branch initiates the process by proposing an initial budget to Congress. The Office of Management and Budget is responsible for putting the budget together. Naturally the head of this agency has emerged as one of the more important people in the White House.
- Wikipedia: The Sixteenth Amendment.
- Website: The Office of Management and Budget.
- Wikipedia: The Office of Management and Budget.
The Great Depression and the New Deal.
The U.S. has been argued to have undergone two significant "constitutional revolutions" since the document was originally ratified. The first followed the end of the Civil War and the addition of three key amendments, the most important being the 14th Amendment. The national government stated that the citizens of the several states were also citizens of the United States and were entitled to the privileges and immunities established in the U.S. Constitution. This effectively, albeit slowly, made the national government a guardian of individual rights, much to the chagrin of the states. It marked a dramatic expansion of national power and an important shift in the relationship between the national and state governments.
So did the second constitutional revolution, the New Deal. The New Deal is the name we give to the variety of programs and agencies created by Franklin Roosevelt's Administration and the Democratic Congress following the election of 1932 and the deepening of the Great Depression. The Great Depression provided an impetus for the passage of legislation addressing the problems caused by that economic collapse. This entailed the use of national power as the mechanism to address these problems. Over the course of several years, the national government claimed authority to regulate aspects of economic life that it had previously left to the marketplace. This included the sales of stocks and bonds and the sale of agricultural products. It also established new programs providing old age pensions and forcing corporations to recognize labor unions.
As with the first constitutional revolution, this marked a significant expansion of national power, but while the former was based on constitutional amendments, this revolution was due to simple redefinitions of constitutional language, notably the term commerce. After defining the term narrowly in previous cases, interpreting it to simply mean the sale of finished products, the terms was broadened to mean also manufacturing and labor. "Interstate Commerce" was also broadly defined to refer to amy commercial activity that has an impact on interstate commerce even if the specific transaction is purely intrastate.
This provided a constitutional basis for New Deal programs, and only took hold once supporters held on to the executive and legislative branches long enough to change the composition of the Supreme Court and ensure that its members would hold a broad understanding of the role of the national government. This is perhaps the most significant outcome of the New Deal. The programs passed into law were simply those that had been developed by the Progressives over time. The New Deal simply increased the scale of these programs and provided a constitutional (albeit loose) justification for those programs.
- Wikipedia: The New Deal.
- Wikipedia: The Great Depression.
The Birth of the Modern Presidency.
The expansion of the national power also expanded the power of the chief executive. After years of playing institutional second fiddle to the legislature, the executive began to take center stage in governmental affairs. Several factors led to this:
1. The establishment of executive agencies
2. The development of modern communications technologies
3. The increasing importance of issues which fell primarily to the executive
4. The personality of FDR.
- The Roosevelts and the Modern President.
- Answers.com: Modern Presidency.
- FDR and the Modern Presidency.
The Brownlow Committee and the Executive Office of the Presidency.
By the late 1930s, and after the creation of a good handful of new agencies, the burden these new institutions created for the president became apparent. A commission, headed by Louis Brownlow was established to determine how the executive branch could be restructured to allow for more effective management of these new responsibilities. Not all the committee's recommendations were adopted, but one was. The Executive Office of the President was established in order to provide administrative, policy related support for the president.
- Wikipedia: The Brownlow Committee.
- Website: Executive Office of the President.
- Wikipedia: Executive Office of the President.
- Wikipedia: National Security Council.
The Establishment of the Department of Defense.
Perhaps the most consequential restructuring of the executive branch in recent history was the establishment of a permanent military apparatus following the end of World War II. Before then, a military was created fresh whenever war was declared. Peacetime armies were resisted, partly due to age old fears that they would enable the executive to rule corrosively. The creation of the Department of Defense changed this and created a peacetime military, including a sophisticated intelligence community.
Beginning in 1789, the military was comprised of separate departments (War, Army, and Navy). Other institutions were created from time to time, but they all existed within their own spheres. This made coordination difficult. The construction of the Pentagon was spurred by the need to enhance coordination at the beginning of World War II. The creation of the Department of Defense, with each of the separate military institutions as agencies with it, has led to a peacetime defense force that is around 25% of the U.S. budget.
- Website: Department of Defense.
- Wikipedia: Department of Defense.
- Website: U.S. Intelligence Community.
- Wikipedia: U.S. Intelligence Community.
An additional feature of militarization, though we generally do not think of it this way, is the creation of the interstate highway system. President Eisenhower was apparently impressed with the German autobahn which allowed the German army the ability to quickly move from one battlefield to another. As a lower ranking officer he was involved in a weeks long movement of troops across the country. These two experiences led him to push for the creation of an interstate highway system which not only allows for troop movement but helped spur the growth of the automobile industry, to say nothing of McDonald's and Stuckey's.
- Wikipedia: Interstate Highway System.
The Great Society and the War on Poverty.
As was the New Deal, the Great Society was a collection of policies designed to address poverty. The difference was that while the New Deal focused on the poverty that occurred as a result of the Great Depression, the Great Society was focused on pervasive, permanent poverty. The term War on Poverty was used by President Johnson as way to sell his proposals. Many of the laws that were passed had been proposed by progressives in the early 20th Century, and some had been proposed during the original New Deal, but had not been feasible until the 1960s. Kennedy had proposed, though not pushed, some of this legislation, but after his assassination, Johnson was able to persuade Congress to pass a significant amount of these proposals into law. These include the following:
- Civil Rights Act of 1964.
- Economic Opportunity Act of 1964.
- Voting Rights Act of 1965.
- Elementary and Secondary Education Act.
- Higher Education Act of 1965.
- Head Start.
- Medicare.
- Medicaid.
The Imperial Presidency.
In the 30 years following the end of World War II, the US's status in the world increased significantly. This included involvement in two large armed conflict in Korea and Vietnam. Covert and diplomatic involvement also increased. What this meant for the presidency was that its role increased in relationship to Congress. As mentioned above, whenever foreign affairs dominates politics, the presidency becomes more important. This was argued by historian Arthur Schlesinger Jr. to have led to the development of an Imperial Presidency which claims powers far beyond what was originally intended in the constitution. He argued that this was a slow incremental process that reach its apex in the Presidencies of Johnson and Nixon.
- About.com: Imperial Presidency 101.
- Findlaw.com: The U.S. Supreme Court and the Imperial President.
The Reagan Revolution and the Contract with America.
The expansion of the federal government that had continued through the imperial presidency led to a reaction. The candidate who was best able to take advantage of anti-government sentiment was Ronald Reagan in 1980, and later Republican congressional candidates in 1994 who ran under Newt Gingrich's Contract with America.
- Wikipedia: Ronald Reagan.
- Wikipedia: Contract with America.
The Post Modern Presidency.
The 1990s was an unusual time in American politics. We were not at war and the economy was booming. The need for presidential leadership was at a low point and commentators remarked on the disappearing power of the president. The beginning of this trend was the fall of communism in 1989. Though conflicts in Panama and Iraq did occur, the ongoing threat of nuclear attack ended with the demise of the Soviet Union. With it went the need for a commander in chief.
- foreign policy unimportant
- economy growing
- domestic policy dominant
- governors increasingly competitive
- Answers.com: Postmodern Presidency.
- Atlantic.com: The First Postmoden President.
- Washington Monthly: The Post-Modern Presidency.
9/11, The Great Recession and the Re-establishment of Presidential Power.
Since the dawn of the 21st Century, the United States has suffered a terrorist attack -- and two armed conflicts related to it -- in addition to two recessions, one being the most severe since the Great Depression. Altogether these have led to the reemergence of presidential power, one that could potentially be as powerful as the imperial presidency.
Past Written Assignments:
1. Over the course of American history the size and power of the executive has increased substantially. Some argue that it has grown too fast, but others suggest that increased powers are necessary considering the nature of existing technology and America's standing in the world. Review the readings above and provide critical commentary on that subject.
2. The Obama Administration reflects a significant shift in the nature of policy-making in the White House. Using your searching skills, I want you to detail one of these shifts. Find a policy set in the Bush Administration that has been changed in the Obama Administration and outline the process that led to that change.
3. One of the factors that has led to the increase of presidential and bureaucratic powers is the network of interests that develop between private interests and the public sector. The term most often used is an "iron triangle." It refers to the link between executive agencies, legislative committees, and interest groups that tend to perpetuate existing policies. Using the link above, try to identify an iron triangle that exists today and the relationships that keep it in place.
4. The functions of the presidency have expanded considerably since the nation was first established. I want you to describe these changes by comparing the nature of the presidency of George Washington with that of Barack Obama. How has the institution changed over the 200+ years between these two men? How has the nature of the office, as well as out expectations of what presidents should do, changed as well?
5. This question builds off the one above. Two major periods of expansion of presidential power -- and federal power in general -- were the New Deal and the Great Society (see the links above). What specific expansions occurred during each period, and factors drove them?
6. The presidency of Ronald Reagan can be best understood as being a reaction to the expansion of governmental power that had occurred during the previous few decades. How did he attempt to reduce the size of government? Was he successful?
7. As we know, one of the president's constitutional functions is to make proposals to Congress. This doesn't mean that Congress always complies. Obama has the advantage of working with a Congress controlled by his party, but conflict can still exist between the two branches. Using news sources, review the relationship between the Obama White House and Congress. Is Obama able to influence Congress? Is Congress acting independently of Obama? Giev examples.
8. Today's national executive branch is much larger than what existed when Washington was president. Provide an account of the factors which led to the increase in its size and functions.
9. One of the more important functions performed by the national government is management of the nation's economy. Detail the evolution of this process beginning with Hamilton's proposals and through the creation of the Federal Reserve System. The Fed has been criticized recently over its handling of the economy and proposals have been made for it to change how it oversees the banking system. What are these proposals?
10. The New Deal and Great Society were two periods of major expansion of national power. Describe each period. What factors lead to them? What were the precise accomplishments of each period? What criticisms are made of each?
11. Since health care reform is still in the news, detail the current state of the national government's role in health care. What reforms are being proposed? Why?